ConCourt quashes High Court ruling on abortion

Fidelis Munyoro-Chief Court Reporter

THE Constitutional Court has thrown out a High Court ruling that sought to widen access to lawful abortion.

In a judgment delivered on Wednesday, the seven-member Constitutional Court declined to confirm declarations that key provisions of the Termination of Pregnancy Act were unconstitutional, setting aside the High Court judgment after finding that it had failed to conduct the full constitutional analysis required by law.

The ruling does not affirmatively declare the challenged restrictions constitutional.

Instead, it turns on how the High Court assessed the alleged violations of fundamental rights and whether it properly justified the limitations imposed by the law.

At the heart of the dispute was whether Zimbabwe’s abortion law, enacted in the 1970s, adequately protects women and girls whose pregnancies threaten their mental health, or arise from sexual conduct criminalised under the Mental Health Act.

Writing the judgment, Constitutional Court Justice Bharat Patel stressed that a finding that legislation infringes a constitutional right does not automatically make it unconstitutional.

“A finding that the impugned legislation limits a constitutional right does not, without more, render that legislation unconstitutional,” he said, emphasising the need to examine whether the limitation is defensible under section 86(2) of the Constitution.

The decision places the spotlight on the constitutional test courts must apply when reviewing legislation, while leaving the substantive question of whether mental health should independently qualify as a ground for lawful termination without a final determination in these proceedings.

The case was brought by the Community Working Group on Health and legislator and human rights activist Nyasha Batitsa against the Minister of Health and Child Care, the Minister of Justice, Legal and Parliamentary Affairs, the Attorney-General and Parliament.

The applicants challenged section 4(a) of the Termination of Pregnancy Act, which regulates lawful termination where continuation of pregnancy endangers a woman’s life or threatens permanent impairment of her physical health.

They argued that excluding mental health from the provision unjustifiably discriminated against women suffering severe psychiatric conditions.

Their case was that health encompasses both physical and mental well-being, and that serious mental illness can carry consequences as devastating as physical disease.

Compelling affected women to continue pregnancies, they argued, could expose them to suicide, postpartum psychosis, long-term psychological injury and violations of human dignity.

They also attacked the Act’s definition of “unlawful intercourse”, arguing that it failed to cover pregnancies arising from conduct criminalised under section 106 of the Mental Health Act.

They contended that women and girls with mental disabilities were being denied lawful termination despite the legal protections against sexual exploitation.

Relying on medical experts, statistical evidence and research on unsafe abortion, the applicants argued that restrictive laws disproportionately endanger adolescents and economically marginalised women, while undermining constitutional guarantees of life, equality and access to healthcare.

Their position was that the central question was not whether the Constitution creates an unrestricted right to abortion, but whether excluding mental health as a lawful ground violates equality and other protected rights.

The Health Minister defended the existing law, arguing that its reference to threats to life and serious impairment of physical health was broad enough to accommodate relevant medical circumstances.

The Minister also warned against treating all mental health conditions alike, maintaining that they vary considerably in severity and that expressly adding mental health as a ground could create an inappropriate blanket approach.

The State further argued that abortion itself had been associated with mental health challenges.

The Justice Minister challenged the applicants’ standing, arguing that they had not identified specific victims whose rights had been violated. He also invoked constitutional avoidance, contending that legislative reform should be pursued through Parliament rather than through a constitutional challenge.

On the merits, the Justice Minister maintained that the provisions remained constitutional and that any necessary changes should be made through legislative amendment.

The Attorney-General sought to be excused, saying no substantive relief had been sought against her and that her role would be to ensure the proper drafting of any amendment required.

Parliament, meanwhile, elected not to oppose the application and left the decision to the court.

The Catholic Lawyers Association of Zimbabwe, appearing as the first amicus curiae (friend of the court), argued that section 48 of the Constitution protects the lives of unborn children and that the existing law adequately safeguards their interests.

It also said the applicants had failed to establish the threshold of mental-health severity that would justify termination.

The second amicus curiae, Pro-Life Universitas, argued that expanding lawful abortion grounds was primarily a matter for Parliament, not judicial intervention. It relied on section 86, which permits constitutionally justified limitations of rights, and maintained that the court should not effectively legislate a new ground for abortion.

The group further argued that Parliament had already considered the issue and declined to adopt the proposed amendments.

The State initially raised ripeness, arguing that a pending legislative process made the challenge premature. That objection fell away when the court was told that the Senate had not approved the proposed amendments.

Justice Patel said Parliament was not beyond judicial scrutiny simply because it had debated an issue and declined to change the law.

“The conduct and decisions of Parliament, like any other exercise of public power, are subject to constitutional review by this Court,” he held.

But the judge drew a distinction between the court’s general power to review Parliament and whether that power should be exercised in confirmation proceedings.

The High Court, he found, had failed to interpret the relevant constitutional rights fully before assessing infringement and had not separately applied the section 86(2) test, which requires limitations to be fair, reasonable, necessary and justifiable in an open, just and democratic society.

The Constitutional Court consequently refused to confirm the declarations of invalidity and set aside the High court judgment, with no order as to costs.

For women and girls whose circumstances formed the basis of the challenge, the ruling marks a setback in this case. But the wider constitutional question remains: how should Zimbabwe’s abortion law reconcile the protection of unborn life with women’s rights to dignity, equality, life and healthcare?

Mr Tendai Biti appeared on behalf of the applicants, while Mr J Shumba, of the Attorney General’s Civil Division, represented the Ministers of Health; Justice, Legal and Parliamentary Affairs and the Attorney General.

Advocate Agyver Saunyama and Advocate Fadzayi Mahere made submissions on behalf of the Catholic Lawyers Association of Zimbabwe and Pro-Life Universitas.

Source: ConCourt quashes High Court ruling on abortion – herald

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